ALBANY — A lawyer for Albany County District Attorney David Soares told the state's highest court on Tuesday that the constitutional separation of powers was violated by a judge's 2010 decision to disqualify Soares' office from its high-profile Florida steroids case.

Christopher Horn, the appellate attorney for Soares, told the Court of Appeals that Albany County Judge Stephen Herrick wrongly tossed a 33-count indictment against five operators of Signature Compounding Pharmacy in Orlando in November 2010. The judge had ruled that a federal civil lawsuit the defendants filed against Soares' office — upheld by a federal judge in Florida — created a "conflict of interest" that warranted the district attorney's removal from the case. In turn, Herrick named a special prosecutor.

On Tuesday, Horn said Herrick's decision sets a dangerous precedent that crosses the line between branches of government that are supposed to be equal. Horn argued that while a governor could remove a district attorney from a case because both entities are in the executive branch, a judge should not have such power.

"The bigger question here is whether the judicial branch of our government can reach into another coordinate, equal branch of government and remove a constitutional officer, replace that officer with an attorney of his choosing and that same branch of government tell you you have no review of that decision," Horn said.

Soares' office asked the Appellate Division of state Supreme Court to reverse Herrick's decision on the grounds that he exceeded his authority under county law — and, in a 3-2 ruling, the appeals court did.

In turn, the attorneys for the defendants took the case to the Court of Appeals. The defendants were represented Tuesday by attorney James Knox of Troy.

Knox said the county Legislature vested the discretion of who should be disqualified on cases with the judges. Knox also contends Soares tainted the entire steroids prosecution by allegedly defaming the defendants.

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One of the core issues in the argument is whether a criminal defendant should be able to sue his or her prosecutor and use that civil suit as a means to get the prosecutor off the case.

"Clearly, the Appellate Division was concerned that this could lead to gamesmanship in the future," Senior Associate Judge Carmen Beauchamp Ciparick told Knox. Knox argued there would not be a deluge of defendants coming forward to get prosecutors off their cases.

Associate Judge Robert Smith told Horn that "everybody can appreciate the problem regarding the defendant disqualifying the DA by suing."

But Smith said it was "unusual" that the federal judge — U.S. District Judge Gregory V. Presnell, who is presiding over the civil suit — would uphold the lawsuit in an opinion that made it appear the defendants' civil case against Soares was not without merit.

"At the time Judge Herrick decided (his ruling), that was the state of play. Was it so unreasonable for him to say that if the DA is in this much trouble, maybe I better get somebody else in?"

Horn replied, "I don't know whether you've all had an opportunity to read that decision (by Presnell), but even a cursory reading of that decision would make it pretty clear it wasn't worth the paper it was written on."